This Is What It Will Take to End Mass Incarceration

The New York Times published an important, eye-opening story Friday that decisively identifies the driving forces of mass incarceration in America: overzealous local prosecutors and judges in conservative rural counties who continue to believe that throwing people in prison for drugs is a good idea.

The story, by Josh Keller and Adam Pearce, shows just how much variation there is in punishment from county to county, noting in its lede that a man who was sentenced to 12 years in prison for selling oxycodone in Dearborn County, Indiana, would have received six months at most if he had been prosecuted 20 miles away, in Cincinnati, Ohio. While many large cities have significantly reduced the number of people being sent to prison, the Times reports, prosecutors and judges in many small counties throughout the U.S. have only become more punitive, even as crime has fallen.

Using new data from the Department of Justice, the Times proves a point that some experts, most prominently Fordham law professor John Pfaff, have been making for a long time: If we are serious about reducing the nation’s sky-high incarceration rate, it can only happen if actors at the local level, especially prosecutors, can be convinced or forced to be less aggressive in the charges they pursue.

These three paragraphs from the Times story explain the depths of the nation’s criminal justice problem:

The stark disparities in how counties punish crime show the limits of recent state and federal changes to reduce the number of inmates. Far from Washington and state capitals, county prosecutors and judges continue to wield great power over who goes to prison and for how long. And many of them have no interest in reducing the prison population.

“I am proud of the fact that we send more people to jail than other counties,” Aaron Negangard, the elected prosecutor in Dearborn County, said last year. “That’s how we keep it safe here.”

He added in an interview: “My constituents are the people who decide whether I keep doing my job. The governor can’t make me. The legislature can’t make me.”

That quote underscores just how much power and autonomy county prosecutors have. It also identifies the one way that ordinary Americans can exert pressure on them: by voting. Unfortunately, most people don’t pay much attention to prosecutor elections, and know little about how to evaluate the candidates. As a result, incumbents like Negangard almost always get reelected.

There is reason to be cautiously optimistic: Thanks in part to the Black Lives Matter movement, prosecutor elections have been attracting more scrutiny from journalists, activists, and donors over the past year or so, and in a number of races we have seen extremely “tough on crime” incumbents defeated by more moderate, or even downright progressive, challengers. Two recent examples are Anita Alvarez in Chicago, who was defeated by Kim Foxx in March, and Angela Corey in Jacksonville, who was trounced by an ever-so-slightly reform-minded Melissa Nelson in a Republican primary earlier this week.

Of course, it would be naive to expect the conservative voters of Dearborn County (and other counties like it) to ever elect a progressive prosecutor who runs on a platform of, say, reducing incarceration and diverting drug offenders into treatment. That’s why some people, including Pfaff, want to see prosecutors reigned in through the blunt force of the law; as he tweeted on Friday, in reference to the Times story, “[W]e need comprehensive charging and plea guidelines. Prosecutors have tremendous discretion and power, yet they are the ONLY actors in criminal justice subject to NO formal guidance.”

That kind of reform is unlikely to come any time soon—at this point it’s not even really part of the mainstream conversation on criminal justice, which focuses on getting rid of some mandatory minimums and providing more opportunities for drug treatment diversion. Nevertheless, it’s worth starting to think about. The Times story makes an unassailable case that county prosecutors—and the judges who hand down sentences based on their decisions—are wielding an enormous amount of influence in America over who goes to prison and who doesn’t. That’s why a burglar convicted in Dearborn County can be sentenced to 31.5 years while his counterpart in Brooklyn or San Francisco might only get four. This is not fair. It’s also the key data point to keep in mind as the country tries to leave behind the era of mass incarceration.